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Sixty years after its foundation, the Council of Europe is reconsidering its role and place in the architecture of European institutions. One area it has recently ventured into is the drafting of a convention against medicines counterfeiting.

Is the Council still necessary given that other organisations like the growing European Union, the Organization for Security and Co-operation in Europe (OSCE) have taken sharp bites into the mandate of the Strasbourg-based body? What topics should the CoE take on in the coming years and where should it avoid overlap?

At the Parliamentary Assembly of the CoE (PACE) last week representatives from the 47 national parliaments discussed problems, weaknesses and the path forward for the body. A first step towards the future was the election of a new secretary general, former Norwegian Prime Minister, Thorbjørn Jagland, following months of fighting between the PACE and Council of Ministers of the CoE.

“We must recognise that for more than 10 years the Council of Europe has lost its importance,” said Gryörgy Frunda, member of the Romanian Parliament speaking for the Group of the European People’s Party during the debate about a resolution on the future of the CoE. Ten years ago the new democracies in Eastern and Central Europe looked to Strasbourg and the Council, and used the Council’s expertise to modify their constitutions and laws and became members of the originally ten-member CoE, he said.

“Today, those countries look to the European Union and it appears that we have lost our importance,” said Frunda. “We must do something to regain the ground we have lost.“

Frunda pointed to areas of overlap, including work on human rights, national minority rights and cultural and ethnic problems. “Last year, we adopted the Convention on Action against Trafficking in Human Beings and now the European Union and the OSCE are working on the same thing. Why?” Frunda asked. French Parliament member Yves Pozzo di Borgo said the foundation of the European Agency of Fundamental Rights, established in Vienna by the European Union, had been a shock for the CoE.

Yet another example is the CoE Convention against Cybercrime, a bold and often praised first attempt to internationally – and even crossing Europe’s borders – regulate crime on the internet. The convention has been topped since the September 11, 2001 terrorist attacks by European legislation that trampled over convention’s insights that the retention of telecommunication and internet traffic data of every citizen would be overzealous.

“Is the Council of Europe already behind the times?” asked Finnish MEP Sinnika Hurskainen from the Socialist Group. What is vital, she said, is to reaffirm and revitalise the role of the CoE as a pan-European political organisation. European states that are not in the EU should have the opportunity to participate in building a united Europe respecting human rights and the rule of law, said Hurskainen and promoted like many other MEPs a complementary role for CoE, OSCE and EU.

“If you believe that democracy and human rights need to be cared for on a daily basis in the larger European context, then there is a need for the Council of Europe,” said Jean Louis Laurens, CoE director of political affairs. The CoE role might vanish, according to Laurens, “if one day everyone can join into the European community, but that day is not tomorrow.” Laurens also underlined the aspect of complementarity of the CoE and other organisations. The OSCE, for example, has more capacity to bring observers to the field, and the CoE in many instances relies on OSCE insights for monitoring compliance of member states with CoE standards.

The problems of the CoE in enforcing its own resolutions and sometimes even basic human rights standards, for example during and after the war between Russia and Georgia, were acknowledged by Laurens. The war, he said, was a collective failure by all organisations, including CoE, OSCE and UN. Asked if failure to sanction violations against CoE resolutions would not call into question the CoE’s legitimacy as a whole, Laurens said, “this is the price we had to pay for the enlargement of the organisation. We had to accommodate countries still in the process of democratisation, respecting human rights and the rule of law.”

Funding, the EU, and Internal Reform

Thee main steps now shall be taken by the CoE according to the PACE resolution on the future of the organisation after many discussions.

First, there is almost unanimous agreement between the PACE and the Council of Ministers that the European Courts of Human Rights, the core watchdog for human rights in Greater Europe, has to be backed financially and institutionally in order to bring the backlog of cases down. Support for that came from Slovenian Prime Minister Danilo Türk who attended the PACE meeting because of the current CoE Council of Ministers chairmanship of Slovenia.

Lack of funding by the member states and the trend of handing over CoE responsibilities to diplomats instead of high government representatives also is criticised in the CoE future document on the PACE, which wants to see national governments to step up their CoE activity. Discussion about the procedures of the CoE and especially the competencies of the Council of Ministers on the one side and the PACE on the other side was also agreed upon by Slovenian Chair of the Council of Ministers and PACE Chair Manuel Puig.

The clash between ministers and Parliament over the selection of the new secretary general had been detrimental to the organisation over recent months, according to many PACE members. The nomination of two former high-level politicians as candidates by the ministers was a break from the earlier tradition according to which the secretary general came from the PACE, said Laurens. In a way, the selection of Jagland had already been a reaction of the ministers to the request to give more attention to the CoE.

The relationship between the two bodies needs to be made clear, said PACE members. Yet they, very similar to their colleges in the European Parliament, also asked for much more influence for the elected MEP instead of the executive members of governments. “We need to make it clear, dear ambassadors and ministers, that we are not the consultative body of that committee. In a democracy, it is the members of Parliament who decide and not the appointed ministers or ambassadors,” warned Runde.

The third task before the CoE, according to the future resolution, is to establish links with the other European institutions, especially the European Union. Laurens told Intellectual Property Watch that it is expected that the European Union will accede to the European Convention of Human Rights and also will consider to become a full member of the Council of Europe after the ratification of the Lisbon Treaty. While this might give even more weight to the big competitor, one might think, it could help to coordinate work better.

Convention on Counterfeit Medicines

The most recent example where both institutions are working along the same lines is counterfeiting and public health. While the European Commission is proposing a new directive against counterfeit medicines, the CoE has prepared a convention on counterfeiting of medical products and similar crimes involving threats to the public health. According to the draft convention’s Article 5, manufacturing of counterfeit medicine has to be sanctioned. According to Article 6, “each party shall take the necessary legislative and other measures to establish as offenses under its domestic law when committed intentionally, the supplying or the offering to supply including brokering, the trafficking, including keeping in stock, import and export of counterfeit medical products, active substances, excipients, parts, materials and accessories.”

A counterfeit medical product is defined as “a product with a false representation of its identity and/or source.”

Asked if the Council was trying to broaden his mandate to intellectual property questions, a Council spokesman reacted by pointing out that the Council did consider the problem of counterfeit medicine as „a threat to public health and safety, thus undermining the right of life enshrined in the Article 2 of the Human Rights Convention.

“Counterfeiters of medicines and other criminals in this area risk the lives and health of the most vulnerable persons,” the spokesman wrote. At an intergovernmental level, the CoE Committee of Experts on minimising public health risks posed by counterfeiting of medical products and related crimes (CD-P-PH/CMED) already worked on the issue.

No expansion of the agenda here, is the main message. Also the work on internet governance, where the PACE agreed to support the European Dialogue on Internet Governance with a secretariat, was well inside the mandate, according to Laurens, as freedom of expression was on the agenda of the Council. Slovenian Prime Minister Türk expressed at the meeting last week his skepticism that there was a need for many more new conventions. And how they will be taken up is another question.